Canales-Vargas v. Gonzales, 03-71737.

• Decision Date: 21 March 2006
• Docket Number: No. 03-71737.,03-71737.
• Citation: 441 F.3d 739
• Parties: Jacqueline CANALES-VARGAS, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 739

441 F.3d 739

Jacqueline CANALES-VARGAS, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-71737.

United States Court of Appeals, Ninth Circuit.

Submitted August 9, 2004.^**

Filed March 21, 2006.

COPYRIGHT MATERIAL OMITTED

Rhoda Wilkinson Domingo, San Francisco, CA, for the petitioner.

Victor M. Lawrence, Office of Immigration Litigation, U.S. Dept. of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72-136-915.

Before HARRY PREGERSON, ALEX KOZINSKI, and MICHAEL DALY HAWKINS, Circuit Judges.

PREGERSON, Circuit Judge.

An Immigration Judge ("IJ") denied Petitioner Jacqueline Canales-Vargas' applications for suspension of deportation, asylum, and withholding of deportation. The Board of Immigration Appeals ("BIA") affirmed without opinion. We have jurisdiction under 8 U.S.C. § 1252. For the reasons set forth below, we grant Canales-Vargas's petition in part and remand to the BIA for further proceedings.

BACKGROUND¹

Canales-Vargas is a native and citizen of Peru. She first entered the United States in 1986 and stayed until May 1989, when she then returned to Peru. She reentered the United States in December 1990. She claims that in April 1990, while she was in Peru, she attended a political rally where she gave a speech denouncing the terrorist group Sendero Luminoso (the "Shining Path"). After the rally, she began receiving threatening notes and phone calls of escalating severity, including some that threatened her with death if she did not leave Peru.

Specifically, beginning two or three weeks after she spoke at the political rally in April 1990, Canales-Vargas received five or six threatening notes and various threatening phone calls. The last threatening phone call came just before she left Peru in November 1990. In addition to threats to harm only her, Canales-Vargas also received a note threatening to place a bomb in her house and kill her family if she failed to leave Peru. According to Canales-Vargas, the letters and phone calls became more aggressive and menacing over time. Originally, the threats told her to "shut up" and "not to speak about things [she] did not know about." Eventually, however, the letters and phone calls threatened her and her family with death if she did not leave Peru.² The IJ concluded that Canales-Vargas was statutorily ineligible for suspension of deportation because she lacked continuous physical presence in the United States. The IJ also concluded that Canales-Vargas was not entitled to asylum or withholding of deportation because she failed to establish that she suffered past persecution or faced any threat of future persecution if returned to Peru. The BIA affirmed the IJ's decision without opinion. Canales-Vargas petitions for review of her final order of removal.

STANDARD OF REVIEW

Because administrative proceedings commenced before April 1, 1997, and the final administrative order was issued after October 30, 1996, the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), apply to this case. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Where, as here, the BIA affirms the decision of the IJ without opinion, we review the decision of the IJ as the final agency decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review the BIA's decision that Petitioner has not established entitlement to suspension of deportation or eligibility for asylum or withholding of deportation for substantial evidence. See Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004); Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir.2003).

DISCUSSION

I. Suspension of Deportation

To qualify for suspension of deportation under IIRIRA's transitional rules, Canales-Vargas must have been in the United States continuously for seven (7) years before being served with an Order to Show Cause ("OSC") as to why she should not be deported. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791-792 (9th Cir. 2003) (applying the pre-IIRIRA seven-year continuous presence requirement to transitional rules cases); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598 (9th Cir. 2002) (applying IIRIRA's "stop-clock" provision, which ends an alien's period of continuous presence upon being served an OSC, to transitional rules cases). An applicant will fail to maintain continuous physical presence if she "has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days." 8 U.S.C. § 1229b(d)(2); see also Lagandaon v. Ashcroft, 383 F.3d 983, 986 n. 1 (9th Cir.2004) (noting that a twenty-day absence did not interrupt petitioner's period of continuous physical presence).

Here, Canales-Vargas was served with an OSC on November 9, 1993. Thus, to qualify for suspension of deportation, Canales-Vargas must have been in the United States continuously since November 9, 1986. Canales-Vargas does not satisfy the seven-year continuous presence requirement, however, because she admits that she took an eighteen-month-long trip to Peru from May 1989 to December 1990.³ Accordingly, Canales-Vargas is ineligible for suspension of deportation.

II. Asylum

A. Applicable Legal Standard

To be eligible for asylum, Canales-Vargas must establish that she is a refugee — namely, that she is a person unable or unwilling to return to Peru "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004); 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004).

To be "well-founded," an asylum applicant's "fear of persecution must be both subjectively genuine and objectively reasonable." Sael, 386 F.3d at 924. "An applicant `satisfies the subjective component by credibly testifying that she genuinely fears persecution.'" Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). An asylum applicant "generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution." Id. (quoting Mgoian, 184 F.3d at 1035). While a well-founded fear must be objectively reasonable, it "does not require certainty of persecution or even a probability of persecution." Hoxha v. Ashcroft, 319 F.3d 1179, 1184(9th Cir.2003). "Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear." Sael, 386 F.3d at 925(quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir.2004)).

B. Analysis

1. Past Persecution

Canales-Vargas may demonstrate past persecution on account of a political opinion with evidence that (1) she has been a victim of persecution; (2) she holds a political opinion; (3) her political opinion was known to her persecutors; and (4) the persecution has been on account of her political opinion. See Gonzales-Neyra, 122 F.3d 1293, 1296 (9th Cir.1997) (citing Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)). Proof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption. See, e.g., Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001).

"In asylum and withholding of deportation cases, we have consistently held that death threats alone can constitute persecution." Navas, 217 F.3d. at 658; see also, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004); Siong v. INS, 376 F.3d 1030, 1039 (9th Cir.2004); Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004) (quoting Navas, 217 F.3d at 658); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.2004); Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir.2002); Lim v. INS, 224 F.3d 929, 935 (9th Cir.2000); Del Carmen Molina v. INS, 170 F.3d 1247, 1249 (9th Cir.1999); Briones v. INS, 175 F.3d 727, 729 (9th Cir.1999); Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998); Gonzales-Neyra, 122 F.3d at 1296; Gonzalez v. INS, 82 F.3d 903, 909-10(9th Cir.1996); Gomez-Saballos v. INS, 79 F.3d 912, 916 (9th Cir.1996); Aguilera-Cota v. INS, 914 F.2d 1375, 1383-84 (9th Cir.1990).

Arguably, Canales-Vargas's credible testimony did not establish that the threats that she received "inflict[ed] sufficient suffering or harm to compel a finding of past persecution." Lim, 224 F.3d at 936(internal quotation marks omitted). But Canales-Vargas argues that the notes and calls, in and of themselves, constitute persecution. While Navas tells us that death threats alone can be persecution, it does not specify if all threats — based on a protected ground — are sufficient to establish persecution. Navas, 217 F.3d at 658.

In Navas, the petitioner presented suffering in excess of mere threats. See id. ("[Navas's] case involves considerably more; here, Navas was not only threatened with death, but two members of his family were murdered, he was shot at, and his mother beaten."). In contrast to the petitioner in Navas, Canales-Vargas received written and telephone threats that were never carried out. The record indicates that the Shining Path neither confronted Canales-Vargas nor physically harmed her. For these reasons, among others, the IJ found that Canales-Vargas did not suffer past persecution. We uphold the IJ's finding because the evidence does not compel a contrary result. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003).

2. Future Persecution

Although Canales-Vargas cannot demonstrate past persecution, she may be eligible for asylum relief if she can prove a fear of future persecution. To demonstrate a...